HOUSE 


Kp-' 1--J t 6 5 

. ... No. 430 


Cfte Commontoealtf) of ^assacftusettg. 


REPORT OF THE SECRETARY OF THE COMMON¬ 
WEALTH AND THE ATTORNEY-GENERAL 
RELATIVE TO THE FEASIBILITY AND DE¬ 
SIRABILITY OF PERMITTING ABSENTEE 
VOTING IN THE ELECTIONS OF THE COM¬ 
MONWEALTH. 


To the Honorable Senate and the House of Representatives. 

By the provisions of chapter 29 of the Resolves of 1915 
the Secretary of the Commonwealth and the Attorney- 
General were directed to consider the feasibility and de¬ 
sirability of legislation to permit, under suitable safeguards 
and restrictions, absentee voting in the elections of the 
Commonwealth. They were also directed to submit to the 
General Court, not later than the second Wednesday in 
January, 1916, the draft of a proposed bill, or, if they deemed 
it necessary, of a constitutional amendment, permitting such 
absentee voting. In compliance with the provisions of said 
resolve the following report is respectfully submitted, to¬ 
gether with a draft of an amendment to the Constitution 
(Appendix A) permitting legislation to provide for absentee 
voting. 

Doubtless, thousands of qualified voters are deprived of 
the right to vote by reason of the exigencies of their voca¬ 
tions, and many others, at a very considerable sacrifice of 
time and money, go from whatever place they find them¬ 
selves to the place of their legal residence for the sole purpose 









2 


ABSENTEE VOTING IN ELECTIONS. [Jan. 


of casting their votes on election day. We believe that this 
manifest injustice should be remedied so far as practical, 
so that voters absent from the city or to\Yn of their residence, 
but not outside the jurisdiction of the United States, should 
be permitted to vote, especial regard being given, however, 
to the prevention and detection of fraud as well as to the 
preservation of the purity of the ballot. 

Absentee voting, or voting by proxy, as it was called in 
colonial days, is not an untried experiment in this Common¬ 
wealth.^ 

It is to be recalled that in the earl}" history of the Massa¬ 
chusetts Bay Colony elections were conducted at a meeting 
of the Great and General Court, held generally in Boston, 
at wdiich every freeman was entitled to cast his vote. 

As early as 1635 it was ordered: — 

That the Generali Court, to be holden in May nexte, for election of 
magistrates, &c., shalbe holden att Boston, & that the townes of 
Ipswch, Newberry, Salem, Saugus, Waymothe, & Hingham shall have 
libertie to stay soe many of their ffreemen att home, for the safety of 
their towne, as they iudge needefull, & that the saide ffreemen that 
are appoyncted by the towne to stay att home shall have liberty for 
this Court to send their voices by proxie.^ 

This experiment apparently was found satisfactory, for in 
the following year it was enacted: — 

This Courte, takeing into serious consideration the greate danger 
& damage that may accrue to the state by all the freemens I'eaveing 
their plantations to come to the place of elections, have therefore 
ordered it, that it shalbee free & lawfull for all freemen to send their 
votes for elections by proxie the next Generali Courte in May, & so 
for hereafter, wch shalbee done in this manner; The deputies wch 
shalbee chosen shall cause the freemen of their townes to bee assembled, 
& then to take such freemens votes as please to send by proxie for 
every magistrate, & seale them vp, severally subscribing the magis¬ 
trates name on the backside, & soe to bring them to the Courte sealed, 
wth an open roule of the names of the freemen that so send by proxie. ® 

1 In these acts and the statements herein concerning them “proxy” is used in a slightly 
different sense from that generally understood to-day. It implied merely the transmission 
by another of the voter’s ballot to the place of voting — not any delegation of the right to 
determine for what person the vote should be cast, such as is usually granted by corporate 
proxies at the present time. 

2 Records of Mass., Vol. I., p. 166. 

3 Records of Mass., Vol. I., p. 188. 


fRr ^ 

K|AOtr*ti ROOM 



HOUSE — No. 430. 


3 


- 1916.] 

^ In 1647 voting in this manner was made compulsory in 
c most cases. ^ Laws prescribing in greater detail the manner 
of collecting and transmitting the proxies, both in the case of 
direct nominations and of election of officers, were passed in 
1649,2 1663,^ 1679^ and 1680.^ 

That personal presence was not always required even at 
the meetings in the towns for collection of proxies seems to 
be indicated by the provision in 1663 that — 

The constable of each toune shall, some convenient tjme before the 
day of election, giue due notice to all the freemen of that toune to 
meete together to giue their votes for elections, and that none shall be 
admitted to giue votes for any other, vnlesse the 'person voteing he also 
present, or send his vote, sealed vp, in a note directed to the depidy or 
tounesmen mett together for that worked 

The following year, however, this law was repealed." 

The Province Charter, granted b}" William and Mary in 
1691, required as to some elections personal presence on the 
part of the voter, and from that time the provisions for 
voting by proxy disappeared. 

The subject of absentee voting was before the National 
House of Representatives at its last session, and the following 
is quoted from the remarks of Hon. John Jacob Rogers, 
Congressman from Massachusetts: — 

I think the question of absentee voting is a question in which every 
member of this House must be greatly interested, not only because it 
concerns very directly his own convenience and comfort, but also be¬ 
cause of the tremendous importance that the thousands of uncast votes 
have or may have on the result of every election in each State of the 
Union. 

As some members of this House know, certain progressive States 
have already adopted legislation permitting voting by mail when any 
voter is necessarily away from, his usual voting place on election day.* 
I do not know just how many States in the Union there are that have 
such laws, but some of the members of the House may be able to extend 
my list of such States. Such testimony as there is upon the matter 
points definitely to the conviction that such a law is working well and 
is likely to work weU wherever it has been or is being tried. There are 


1 Records of Mass., Vol. II., p. 220. 

2 Records of Mass., Vol. III., p. 177. 

3 Records of Mass., Vol. IV., pt. 2, p. 86. 


‘ Records of Mass., Vol. V., p. 291. 

« Records of Mass., Vol. IV., pt. 2, p. 86. 

‘ Records of Mass., Vol. IV., pt. 2, p. 134. 



4 


ABSENTEE VOTING IN ELECTIONS. [Jan. 


only four States that I actually know of where this legislation is now on 
the statute books. These are Kansas, Nebraska, Missouri and North 
Dakota. 

I took occasion within a few weeks to write to the Secretary of State 
of each of these States to get his opinion upon the working of the law in 
his State. Secretary of State Roach of Missouri wote me that he 
believed that the central thought in the Missouri law was meritorious, 
although there was a distinct weakness in the details of the bill, which 
would undoubtedly have to be corrected at an early session of the 
Legislature. 

What is this absentee voting and precisely what does it seek to 
accomplish? 

The opinion is rapidly growing in the United States that there is 
neither justice nor excuse for the present virtual disfranchisement of 
hundreds of thousands of voters because their occupations oblige them 
to be absent from their legal residence on election day. To remedy 
this situation, a number of progressive States have already enacted 
what is known as an absentee voting law — that is, a law which permits, 
under suitable safeguards to prevent fraud, error or delay, a voter who, 
for business reasons, is unable to cast his vote in the usual way to be 
duly and legally recorded. 

Perhaps enough has already been said to indicate that such a meas¬ 
ure is by no means a theoretical one, but that it is in use in several 
States to-day and is meeting the undoubted approval of those familiar 
with it. 

It cannot be asserted that the evil sought to be remedied is a slight 
or a fanciful one. Hundreds of thousands of qualified citizens of the 
United States who desire to vote are annually unable so to do, because 
of their necessary absence from their homes on election day. Take the 
State of Massachusetts alone —• probably twenty or thirty thousand 
qualified voters are thus virtually disfranchised at every State-wide 
election. I have assembled, mainly from the 1910 census of the United 
States, a list of occupations engaged in by Massachusetts men and 
likely to entail their absence from home on a given date. 

This list follows: — 


Fishermen and oystermen,.5,946 

Lumbermen and raftsmen,.949 

Locomotive engineers,.2,082 

Locomotive firemen,.1,552 

Conductors (steam railroad),.1,887 

Canvassers,.537 

Brakemen,.2,944 

Commercial brokers and commission men,.927 

Commercial travelers,.9,474 

Soldiers, sailors and marines,.2,519 

Showmen,.677 










1916.] 


HOUSE — No. 430. 


5 


Actors,. 073 

Sailors and deck hands,.1^707 

Captains, mates, masters and pilots,.1,181 

Civil service employees in District of Columbia alone, . . 852 

Total,.33,907 


There are, of course, many other occupations which may well entail 
absence from home on election day, some of which are — 

Cranberry bog pickers, . 1,129 

Farm laborers (working out),. 21,976 

Quarry operatives,.2,192 

Building contractors,.' . . . 8,778 

Structural ironworkers,.585 

Chauffeurs,.4,428 

Students (registered in higher institutions of learning all over 

the United States),.8,249 

Total, . .. 47,337 

In addition to those enumerated in the foregoing tables there are 
many in other occupations whose duty or pleasure may result in ab¬ 
sence from home on election day — Senators and members of Congress, 
noncivil-service government employees, travelers for pleasure, and so 
on. 

As previously stated, I do not contend that all the upward of 80,000 
above specifically enumerated are deprived by the present system of 
voting of their right to cast the ballot; many of them undoubtedly 
find themselves able to vote in the ordinary way, others are not regis¬ 
tered voters at all, and still others are under 21 years of age. Never¬ 
theless, it would seem that 25 per cent, or about 20,000, was a very 
conservative estimate of those excluded from the privilege of voting. 
In ail probability the number would far exceed this suggested 
minimum. 

I think I need not further emphasize the inherent right and impor¬ 
tance that these thousands, of citizens should be given the privilege of 
the ballot. The remedy proposed is simple, inexpensive, practical and 
just. It seems to me clear that it should be adopted. 

The feasibility of legislation to permit absentee voting in 
the election of State officers is dependent in the first instance 
upon whether or not such legislation would be constitutional. 

So far as the election of officers of the Federal government 
is concerned there seems to be no provision in the United 
States Constitution preventing it, and the courts of several 







6 


ABSENTEE VOTING IN ELECTIONS. [Jan. 


States have so decided. (Opinion of the Justices, 45 N. II. 
595, 596; Opinion of the Justices, 37 Vt. 665.) 

During the Civil War, legislation to attain this result was 
enacted in many of the States. As to local officers, in each 
case the question involved the interpretation of the Constitu¬ 
tion of the particular State where enacted. Such laws were 
held to be constitutional in Bourland v. Hildreth, 26 Cal. 161, 
and Lehman v. McBride, 15 Ohio St. 573. 

The following courts held the acts to be unconstitutional: 
Opinion of the Judges, 30 Conn. 591; Opinion of the Justices, 
37 Vt. 665; Opinion of the Justices, 44 N. H. 633; Vlorrison 
V. Springer, 15 Iowa, 304; Twichell v. Blodgett, 13 Mich. 
127; Chase v. Miller. 41 Pa. St. 403; State, ex rel. Chandler 
V. Main, 16 Wis. 422. 

The Constitutions of the three New England States 
mentioned more nearly resemble our own, and the decisions 
in those States, cited above, dwelt largely upon the fact that 
voting is to take place in the “freemen’s meetings” or 
“electors’ meetings” in the several towns, which meetings 
correspond in most respects to our own town meeting. 

In the Connecticut decision it is said: — 

The convention found the “freemen’s meeting” a distinct and pecul¬ 
iar feature in the political system of the State, as old as its history. It 
originated in 1639, in the compact or Constitution formed by the towns 
of Hartford, Windsor and Wethersfield, in a provision for the warning 
of a “freemen’s meeting” to elect deputies (representatives) from each 
town to the General Court (Assembly). From that year, and after the 
merger of the New Haven colony under the charter of Charles, there 
has never been an election, by the people, of representatives or state 
officers, in any other manner or place. The convention adopted this 
feature, as they did in the main the other institutions of the state, 
changing its name to “electors’ meeting.” And then, in pursuance of 
one of their leading purposes, they directed, in as clear and explicit 
language as they could command, and specifically, and with repetition, 
as to each of the officers, that they should be successively voted for and 
chosen “at,” or “in,” that electors’ meeting. There the Constitution 
directs that the votes of the electors shall be offered and received; 
that is the onlj^ place contemplated or in any way alluded to in that 
instrument where they may be offered and received; and there only, 
we are satisfied, they must be offered and received, or they can have 
no constitutional operation in the election for which they are cast. 


1916.] 


HOUSE — No. 430. 


7 


Looking at our own Constitution it provides as to sena¬ 
tors : — 

The senate shall be the first branch of the legislature; and the senators 
shall be chosen in the following manner, viz.: there shall be a meeting 
on the (first Monday in April,) annually, forever, of the inhabitants 
of each town in the several counties of this commonwealth; to be called 
by the selectmen, and warned in due course of law, at least seven days 
before the (first Monday in April,) for the purpose of electing persons 
to be senators and councillors; (and at such meetings every male in¬ 
habitant of twenty-one years of age and upwards, having a freehold 
estate within the commonwealth, of the annual income of three pounds, 
or any estate of the value of sixty pounds, shall have a right to give in 
his vote for the senators for the district of which he is an inhabitant.) 
And to remove all doubts concerning the meaning of the word “ inhab¬ 
itant ” in this constitution, every person shall be considered as an in¬ 
habitant, for the purpose of electing and being elected into any office, 
or place within this state, in that town, district, or plantation where he 
dwelleth, or hath his home. 

The selectmen of the several towns shall preside at such meetings 
impartially; and shall receive the votes of all the inhabitants of such 
towns present and qualified to vote for senators, . . . 

As to representatives the only requirement is that they 
‘‘shall be chosen by written votes.” 

As to Governor, the language is: — 

Those persons who shall be qualified to vote for senators and repre¬ 
sentatives within the several towns of this commonwealth shall, at a 
meeting to be called for that purpose, on the (first Monday of April) 
annually, give in their votes for-a governor, to the selectmen, who shall 
preside at such meetings; . . . 

The election of the other State officers under the Constitu¬ 
tion and its amendments now in force must be in the same 
manner as required in the election of governor. 

It thus appears that as to senators, at least, there is an 
express requirement of personal presence in the meeting in 
the town or city of which the voter is an inhabitant, and it 
seems reasonably clear that the “meeting” at which the 
votes for governor are to be given in is the same meeting as 
that prescribed for the election of senators. 

While, as stated above, voting by proxy ^ was not unknown 
in this Commonwealth at the time of the adoption of the 


1 Used in the sense designated on page 2. 




8 


ABSENTEE VOTING IN ELECTIONS. [Jan. 


Constitution, and the statement in the Connecticut opinion, 
quoted above, that votes had never been cast in any other 
manner or place, is not absolutely accurate, it is true that 
for nearly one hundred years prior to the adoption of the 
Constitution, or, rather, since the charter of William and 
Mary, town meetings and State elections had been conducted 
under the requirement of personal attendance. 

The Province Charter provides for a General Court com¬ 
posed of Governor and Council and of such representatives 
“as shall be from time to time elected or deputed by the 
major part of the freeholders and other inhabitants of the 
respective towns or places, loho shall he present at such 
elections 

The first legislation enacted after this charter went into 
effect provided for a town meeting which should “by the 
major vote of such assembly then, and there” choose the 
local town officers.^ 

It would seem, accordingly, that the reasoning of the 
opinions in the cases cited which held such laws unconstitu¬ 
tional would be followed in this State in most cases, although, 
as said by the court in Capen v. Foster, 12 Pick. 485, 488, 
489, as to some officers in this State, notably representatives, 
absentee voting would be permissible. 

It hardly seems advisable to have elections to Federal or 
State offices conducted on one basis as to some, and a 
different basis as to others, because of the confusion likely to 
result therefrom, and accordingly we have, in compliance 
with the said resolve, drafted a constitutional amendment, 
which is hereto annexed. 

Regardless of one’s views as to the advisability of such 
legislation at the present time or under ordinary conditions, 
it would be of great advantage to have such an amendment 
to the Constitution so that in case of such an emergency as 
confronted the voters at the time of the Civil War, and as 
has been met at the present time in the Dominion of Canada 
by legislation of this sort, the Legislature would be in 
position to enact fitting laws to provide for the emergency. 
The same equity which led our forefathers, in 1635, to permit 


Acts and Resolves, 1692-1714, p. 11. 


2 Province Laws, 1692, c. 28, § 4. 



1916.] 


HOUSE — No. 430. 


9 


those voters who were required to stay in their home towns 
to protect themselves and the Commonwealth from hostile 
a(?ts of the Indians, to send their votes by proxy, would 
require similar legislation to permit those who may be absent 
from their homes for the purpose of protecting the Common¬ 
wealth or their country to do likewise. 

ALBERT P. LANGTRY, 

Secretary of the Commonwealth. 

HENRY C. ATTWILL, 

Attorney-General. 


Appendix A. 


Proposed Amendment to the Constitution empowering 
THE General Court to provide by Law for Absent 
Voting. 

Article of Amendment. 

The General Court shall have power to provide by law for 
voting by qualified voters of the Commonwealth who are 
absent from the city or town of which they are inhabitants 
at the time of an election, in the choice of any officer to be 
elected or upon any question to be voted on at that election. 


































































































